LAW OFFICE of JAMES BUDREAU

In federal court, the sentencing process is much more complicated than in the state courts. In 2005, the U.S. Supreme Court ruled that the federal sentencing guidelines were no longer mandatory but were advisory only. This permits federal judges to deviate from the guideline ranges established by Congress. Consequently, federal sentencing is a two prong process. First judges must consult the sentencing guidelines manual to determine what the presumptive sentence is. **United States Sentencing Guidelines Manual. Then the court can adjust the sentence based upon statutory factors which give the judge significant discretion in fashioning a final sentence. See 18 U.S.C. 3553(a).

The following is an illustration of how the federal sentencing guidelines can apply. Whether the court decides to increase or reduce the presumptive sentence is not a question which can be addressed here given its discretionary nature and the various factors which must be analysed including, but not limited to, the background of the defendant, the nature of the offense and the history of that particular judge.

Despite this sentence Mr. Doe could be granted some downward departures which have been fully embraced by the federal courts in recent years. While some of the departures are discouraged, a professional presentation together with good facts can substantially reduce a person's sentence. For example, Mr. Doe had a gambling problem which had a causal relationship to his crime. While most courts would reject that as a basis for a downward departure, there are facts which could lead to a substantially reduced sentence depending upon the judge's reaction to the evidence proffered by the defendant. Other possible grounds for downward departures for Mr. Doe include but are not limited to: (1) rehabilitation given his repayment of the money and having sought treatment before he was actually charged; (2) aberrant conduct which could apply if the theft was a one time transaction (or a number of transactions which were short in duration) and the theft was based upon threats from the loan shark (possibly duress also); and (3) extraordinary family ties given his handicapped daughter's dependence. Based upon the above factors, a federal judge could substantially reduce Mr. Doe's sentence if not grant him probation. The ultimate decision is a discretionary one for each judge and may actually differ depending upon who the judge is.

Given the Supreme Court's ruling in United States v. Booker, the factors for departing from the guidelines have been increased and permit significant discretion. New grounds for departure include, but are not limited to, family history, community contributions and good works, role in the offense and economic hardships that might be causally related to the offense.

Alternatives

Presentation

If Mr. Doe had pled guilty, then he would be entitled to even further reductions to his offense level. First, he would be granted a 3 level reduction for acceptance of responsibility which would bring his maximum sentencing range to a level 21 which converts into 37 to 46 months. Additionally, counsel could ask the court to reduce his sentence further based upon extraordinary acceptance of responsibility for returning a large portion of the money before the indictment as well as for the other reasons described above (if this was negotiated as part of a civil suit then this downward departure may be inapplicable). The other requests for downward departure, i.e., rehabilitation, would be much more effective during a plea than after trial. See U.S.S.G. Manual sec 5K2.0. Depending upon the sentence given Mr. Doe as well as his age and physical shape, the Court could also recommend boot camp which would further reduce any time actually served by up to a year or more.

Each issue presented above can be extremely legalistic and depend upon the facts of that particular case and how they compare to the language of the Guidelines and the case law from all federal district and appellate courts. While they are presented in a straight forward fashion above, the process of federal sentencing is anything but that in reality.

As federal sentencing can sometimes be as complicated as a trial itself, it is vital that a defendant obtain counsel who is experienced and knowledgeable in federal court matters.

These are only some of the legal issues that a citizen faces in the criminal system. In order to obtain a free consultation about issues that specifically pertain to your personal circumstances, call the Law Offices of James Budreau at (617)227-8558.

**It should be noted that the money laundering guidelines for the USSG Manual was amended on or about October 31, 2001. This amendment, which is only available through subscriber services, changes sentences for money laundering drastically. Please call for more information and for a consultation as to how the new guidelines amendment could impact your federal case.

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